Collectively, the documents that make up your comprehensive estate plan will likely be among the most important documents you ever create during your lifetime. Given how important they are, once they are prepared and ready to be utilized when necessary, what should you do with them? A Hauppauge estate planning attorney at the Law Offices of Kobrick & Moccia explains what you should – and should not – do with your estate planning documents.
Common Estate Planning Documents
Your estate plan is as unique as you are. There are, however, some common documents that are routinely part of a comprehensive estate plan, such as:
- Last Will and Testament
- Trust agreement
- Power of attorney
- Life insurance policy
- Advance directive
In many cases, an original copy (meaning one with an original signature in ink) of the document in question is required in order for the document to work as intended. For this reason, your estate planning documents should be kept together in a safe place. Understandably, the first place many people think to store their estate planning documents is in their existing safety deposit box. After all, that’s probably where you keep valuable jewelry, deeds to property, stocks and bonds, and other valuables. At first glance, it makes perfect sense to put your estate planning documents in your safety deposit box as well. In reality, however, the best place for your estate planning documents is not in a safety deposit box.
The Chicken and the Egg Dilemma
The problem with your safety deposit box begins with understanding some probate basics. Shortly after your death, your estate needs to go through the legal process known as “probate.” Probate serves numerous purposes, including:
- Identifying and securing your assets
- Authenticating your Will
- Paying debts of the estate
- Litigating any claims against the estate
- Paying estate taxes
- Distributing assets to beneficiaries and/or heirs
If you executed a Will prior to your death, you appointed someone to be the Executor of your estate. Your Executor is responsible for overseeing the probate process. To perform that job as intended, your appointed Executor must initiate the probate process with appropriate court and petition the court to officially be appointed as your Executor. If the court approves the appointment, the court will issue Letters Testamentary which provide proof that the Executor has been appointed by the court and therefore has the authority to act on behalf of the estate.
The problem is that in order to initiate the probate process and secure the appointment as your Executor, an original copy of your Will must be submitted to the court. If your Will is in your safety deposit box, however, the bank won’t allow access to the box without proof that the individual seeking access is the Executor of your estate and has the authority to access the box. This becomes a “chicken and egg” problem. Your Executor cannot secure the necessary Letters Testamentary to act as your Executor without your Will – but he/she cannot access your Will without the Letters Testamentary.
Similar problems can crop up with other estate planning documents as well. For example, an Agent with your Power of Attorney may have the legal authority necessary to access your safety deposit box; however, if the POA document granting your Agent that authority is in the box, your Agent has no way to prove that he/she is your Agent.
Where Should I Keep My Estate Planning Documents?
You now know where not to keep your estate planning documents – but where should you keep them? First, it is always a good idea to execute more than one original copy of important documents. Ask your estate planning attorney to keep one set of original documents. Also give an original copy to anyone named to a fiduciary position within your plan. Your Executor should get an original copy of your Will. A Trustee should have an original copy of a trust agreement and an Agent needs an original copy of a Power of Attorney. Finally, an original set of documents should be kept at home in a fireproof safe and/or given to a trusted family member.
Contact a Hauppauge Estate Planning Attorney
Please feel free to download our FREE estate planning worksheet. If you have additional questions or concerns regarding where to keep your estate planning documents, or about estate planning in general, contact a Hauppauge estate planning attorney at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.